NO. 07-06-0485-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 18, 2007

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IN RE JOHANSON LEE WATSON, RELATOR

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON PETITION FOR WRIT OF MANDAMUS

Relator, Johanson Lee Watson, an indigent inmate, seeks a writ of mandamus to

compel the Honorable Dan Mike Bird to consider and rule on his application for writ of

habeas corpus and motions related thereto. For the reasons expressed below, we deny

relator’s request for a writ.

On April 25, 2006, Watson filed an Application for Writ of Habeas Corpus in the trial

court contending that the judgment upon which he was convicted was void. Watson

followed his application with several motions and other correspondence requesting the trial

court to consider and rule on his application.

Initially, we note that the party seeking mandamus relief has the burden to provide

a record sufficient to establish his entitlement to such relief. Walker v. Packer, 827 S.W.2d

833, 837 (Tex. 1992). The relator in a mandamus proceeding must file, with his petition,
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a certified or sworn copy of every document that is material to the relator’s claim for relief

and that was filed in any underlying proceeding. TEX. R. APP. P. 52.3(j)(1)(A), 52.7(a)(1).

In the present case, Watson provided copies of documents that are material to his claim

for relief. While some of these documents were file-stamped by the trial court’s clerk, they

are neither certified nor sworn. As such, Watson has failed to meet his burden of providing

a record sufficient to establish his entitlement to mandamus relief. Walker, 827 S.W.2d

at 837.

A trial court has a ministerial duty to consider and rule on motions properly filed and

pending before the court and mandamus may issue to compel the judge to act. SafetyKleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997, orig.

proceeding) (citing O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.–Tyler 1993,

orig. proceeding). To establish entitlement to the issuance of a writ of mandamus

compelling a trial court to consider and rule on a pending motion, the relator bears the

burden to establish that (1) the trial court had a legal duty to perform, (2) relator made a

demand for performance of this duty, and (3) the trial court refused to act. Stoner v.

Massey, 586 S.W.2d 843, 846 (Tex. 1979). However, the trial court is afforded a

reasonable time within which to perform this ministerial duty. Safety-Kleen Corp., 945

S.W.2d at 269. Whether a reasonable period of time has lapsed is dependent on the

circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston

[1st Dist.] 1992, orig. proceeding). Factors relevant to whether a reasonable time has

lapsed include: the trial court’s actual knowledge of the motion, its overt refusal to act, the

state of its docket, and other judicial and administrative duties which it must address. In
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 Watson contends that an inmate’s demand for performance is sufficiently

established by proof that such a demand was “directly mailed” to the trial judge. He cites

Justice Grant’s concurrence in Carson v. Serrano, 96 S.W.3d 697, 700

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re Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding). The party

requesting relief must provide a sufficient record to establish his entitlement to mandamus

relief. Walker, 827 S.W.2d at 837.

Considering the uncertified and unsworn documents provided, Watson fails to

establish his entitlement to mandamus relief in this case. Watson has provided this Court

a file-stamped copy of his application for writ of habeas corpus. Assuming that this

application was properly filed with the trial court, it would impose a legal duty on the trial

court to consider and rule on the application in a reasonable amount of time. See SafetyKleen Corp., 945 S.W.2d at 269. However, documentation provided by Watson to

establish that he made a demand to the trial court to perform this duty fails to establish that

an appropriate demand was made. Watson provides copies of two letters that he

purportedly sent to Judge Bird in an effort to establish his demand for Judge Bird to

consider and rule on his application. However, these letters demand that Judge Bird rule

on Watson’s “Motion . . . to Compel Trial Judge/Trial Court to act, rule on pending

Motion(s).” At best, these documents show that Watson made demand on Judge Bird to

consider and rule on a motion to compel a ruling on some unnamed motion(s). These

letters do not establish that Watson made demand upon the trial court to consider and rule

on his pending application for writ of habeas corpus. From the documents presented by

Watson, we cannot conclude that the trial court was actually aware of the pending

application for writ of habeas corpus.1
(Tex.App.–Texarkana 2003, pet. denied), as support for this contention. However, Carson

addressed the specific presentment requirement for a motion for recusal rather than a

demand for performance of a legal duty. Even if this Court were to determine that the

concurrence cited by Watson were controlling in this case, an issue which we need not

decide, Watson’s demand requested only that the trial court consider and rule on an

unnamed motion and fails to establish that the trial court was actually aware of Watson’s

application for writ of habeas corpus. 

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Further, Watson’s uncertifiedand unsworn documentation includes no evidence that

the trial court overtly refused to act on his application. Neither has Watson provided any

evidence regarding the state of the trial court’s docket or whether the court has other

judicial or administrative duties which must be addressed.

We conclude that relator has not satisfied his burden to show his entitlement to

mandamus relief. Walker, 827 S.W.2d at 837. Accordingly, Watson’s petition for writ of

mandamus is denied.

Mackey K. Hancock

 Justice